Defendant, who was not named in the
warrant, was present when police executed warrants to search Parras's premises
and to arrest him. Parras had a "very violent criminal history of
assaults," including involvement in a second-degree manslaughter. Police
had executed another warrant to search Parras's premises about four months
earlier. During that earlier search, they found a loaded pistol within an
arm's reach of Parras. Savage, one of the officers involved, testified that
Parras's history raised concerns about threats to the officers' safety during
execution of the later warrant. In addition, two informants had told Savage
that, after the execution of the first search warrant, Parras had been very
upset and had made threatening statements.

Police returned to Parras's home to
execute the warrant involved in this case. Savage knocked twice on the door of
a fifth-wheel trailer, which he understood to be Parras's living quarters, and
announced, "Police, search warrant." He heard someone moving inside
the trailer and then heard a female voice saying, "I'm coming."
Savage opened the trailer door and saw defendant pick up a purse, put it on her
shoulder, and step out the door. Savage then told defendant that she was being
detained but not arrested. He had her place her hands behind her back, removed
the purse from her shoulder, and handcuffed her.

After a few minutes, another officer,
Morgan, patted down defendant. Defendant was wearing cowboy boots, and the
pant legs of her blue jeans were over the boots. Morgan lifted defendant's
pant leg to look inside her boot. Morgan explained that she did so because
"typically most people will hide things inside their boots[--]knives,
guns, et cetera[--]and it was loose enough at the top that there could
be something in between the skin and the boot * * *." Inside defendant's
boot, Morgan saw a glass methamphetamine pipe, which she seized.

After defendant was charged with
possession of a controlled substance, she moved to suppress the evidence found
in her boot, and the trial court denied that motion. The court concluded that
Morgan's actions--lifting defendant's pant leg and looking in her boot--did not
exceed the scope of a reasonable frisk conducted for officer safety. The court
explained that feeling the outside of a boot was like "patting a briefcase
or patting something else that's made of leather or some heavier
material." Defendant entered a guilty plea, reserving the right to
challenge the denial of her suppression motion.

On appeal, defendant renews her
contention that the evidence found as a result of the search of her boot should
have been suppressed because the search violated her rights under Article I,
section 9, of the Oregon Constitution. In her view, even if the officers had
reasonable safety concerns to justify detaining and frisking her, those
concerns did not justify the search of her boot. The state responds that,
because defendant's boots impaired Morgan's ability to complete a frisk, it was
necessary to lift the pant leg in order to complete an effective frisk.

Article I, section 9, provides, in
part, "No law shall violate the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search, or seizure[.]"
Nevertheless, an officer may

"take reasonable steps to protect himself or others if,
during the course of a lawful encounter with a citizen, the officer develops a
reasonable suspicion, based on specific and articulable facts, that the citizen
might pose an immediate threat of serious physical injury to the officer or to
others then present."

State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987).
Although we do not "uncharitably second-guess an officer's judgment"
in such cases, id., we must determine "whether the particular
step taken by the police was one that was reasonable under the particular
circumstances, not whether that step was within the range of reasonable
responses to officer safety concerns in general," State v. Rudder, 347 Or 14, 22, 217 P3d 1064 (2009) (emphasis in original).

In Rudder, a police officer
attempted to conduct a patdown search of the defendant, but the defendant twice
turned away when the officer tried to touch the defendant's pocket. The
officer and a second officer then handcuffed the defendant and, instead of
completing the patdown, the first officer pulled open the defendant's pocket,
shined a flashlight into it, and discovered a container of a white crystalline
substance that turned out to be methamphetamine. Id. at 16-17. The
court concluded that, although a patdown search of the defendant's exterior
clothing was justified, the more intrusive search of the defendant's pocket was
not: "A patdown, because of its limited intrusiveness, is
constitutionally permissible if it is based on a reasonable suspicion of a
threat to officer safety. But intrusion into a suspect's clothing
requires something more--either probable cause or some greater justification
than was present here." Id. at 25 (footnote omitted; emphasis in
original).

Similarly here, Morgan conducted a
search that went beyond an ordinary patdown when she intruded into defendant's
clothing--that is, when she lifted defendant's pant leg to look inside
defendant's boot. The state contends that Rudder is factually
distinguishable because, here, an exterior patdown of defendant's boots would
not have permitted Morgan to determine whether defendant had a weapon in her
boot. We note that there was no testimony describing the boots in any more
detail than "cowboy boots," and Morgan did not testify about what she
could or could not feel through defendant's boot. Even assuming that the boot
was thick enough to prevent Morgan from feeling anything hidden in the boot,
defendant was handcuffed at the time that she was searched and thus did not
have access to anything hidden under her pant leg and inside her boot. See,
e.g., State v. Petri, 214 Or App 138, 144, 162 P3d 1053 (2007)
(concluding that opening a sunglasses case was not justified, because the
contents of the case posed no threat where the officer already had taken the
case from the handcuffed defendant's pocket). Here, under the circumstances,
the more intrusive search was not justified, and the trial court erred in
denying defendant's motion to suppress.